Farrell v Adia Value Engineering Pty Ltd
[2002] WADC 77
•12 APRIL 2002
FARRELL -v- ADIA VALUE ENGINEERING PTY LTD & ORS [2002] WADC 77
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WADC 77 | |
| Case No: | CIV:1980/1994 | 12 APRIL 2002 | |
| Coram: | WILLIAMS DCJ | 12/04/02 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| PDF Version |
| Parties: | VICTORIA JANE FARRELL ADIA VALUE ENGINEERING PTY LTD ALCOA OF AUSTRALIA LTD ALLIANZ AUSTRALIA LIMITED QBE MERCANTILE MUTUAL LIMITED |
Catchwords: | Procedure Supreme Court procedure Application to amend pleadings |
Legislation: | Nil |
Case References: | State of Queensland and Anor v JL Holdings Pty Limited (1997) 189 CLR 146 Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd and Ors (1994) 13 WAR 323 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ADIA VALUE ENGINEERING PTY LTD
First Defendant
ALCOA OF AUSTRALIA LTD
Second Defendant
ALLIANZ AUSTRALIA LIMITED
First Third Party
QBE MERCANTILE MUTUAL LIMITED
Second Third Party
Catchwords:
Procedure - Supreme Court procedure - Application to amend pleadings
(Page 2)
Legislation:
Nil
Result:
Application successful
Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
First Defendant : Mr M F Dwyer
Second Defendant : Mr P White
First Third Party : No appearance
Second Third Party : No appearance
Solicitors:
Plaintiff : Leonard Cohen & Co
First Defendant : Corrs Chambers Westgarth
Second Defendant : Pynt McKay
First Third Party : No appearance
Second Third Party : No appearance
Case(s) referred to in judgment(s):
State of Queensland and Anor v JL Holdings Pty Limited (1997) 189 CLR 146
Case(s) also cited:
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd and Ors (1994) 13 WAR 323
(Page 3)
1 WILLIAMS DCJ: This is an application on the part of the first defendant to amend its defence dated 13 December 1999 and its statement of claim against the second defendant dated 18 May 2000.
2 The action in these proceedings commenced in 1994. At all times up until the plaintiff's amendment of the statement of claim in June 2001 the plaintiff pleaded that she was an employee of the first defendant and further that the first defendant supplied the services of the plaintiff to the second defendant. She alleges that she was injured on the premises of the second defendant in that she received a repetitive strain injury over the period of 10 April 1991 to 7 October 1992.
3 In June 2001 the plaintiff amended her statement of claim by introducing an alternative plea for the first time, namely, that she was either an employee or a contractor of the first defendant. Although the action was commenced in 1994, the first defendant did not file its defence until 13 December 1999, some 5 years after the action commenced. Counsel for the plaintiff accepted that most of that period of time was due to the fact that the writ of summons in these proceedings was not served on the first defendant.
4 In that defence the first defendant did not admit the employment allegation and asserted that the plaintiff was a subcontractor or alternatively an employee transferred on a temporary basis from the first defendant to the second defendant. By reason of the plaintiff's amendment in June 2001, the first defendant's employer indemnity insurer declined to carry on the defence of the action on behalf of the first defendant. This meant that the first defendant was required to appoint new solicitors to defend the action. The new solicitors were required to investigate the circumstances of the plaintiff's claim afresh and investigate whether to pursue the employer indemnity insurer and the public liability insurer as third parties to the action. A notice of change of solicitor was filed by the first defendant on 18 July 2001.
5 In relation to this matter the plaintiff was put on notice of the proposed defence by letter dated 28 September 2001 from Corrs to the plaintiff's solicitor. The new solicitors' investigations revealed a new defence that the first defendant could not have been an employee or an independent contractor of the first defendant prior to 6 December 1991 because the first defendant purchased the personnel agency which supplied the plaintiff's services to the second defendant from a company called Value Engineering Australasia Pty Ltd and that the purchase took effect from 6 December 2001.
(Page 4)
6 The first defendant says that prior to 6 December 1991 it had had no legal relationship with the plaintiff. To that the plaintiff says it would be prejudiced if the first defendant is permitted to amend its defence in the manner proposed. She says that the first defendant has had ample opportunity to raise that as an issue during the workers compensation proceedings and in the current proceedings before the relevant 6-year limitation period expired, and did not do so.
7 The first defendant now seeks leave to amend its defence after the matter has been listed for trial. It is clear from the authorities that justice is the paramount consideration in determining an application for leave to amend - see State of Queensland and Anor v JL Holdings Pty Limited (1997) 189 CLR 146 at 155 per Dawson, Gaudron and McHugh JJ.
8 In my view the amendment should be allowed and for the following reasons: the need for the amendment has come about because of the plaintiff amending her statement of claim to plead that she was an employee or, in the alternative, a contractor of the first defendant. This event resulted in the employer indemnity insurer withdrawing from the defence of the first defendant.
9 In that respect it should be stated that if the writ had been served on the defendant earlier than it was, then these matters may well have come to light at an earlier date. There was a need on the part of the first defendant to appoint new solicitors after the employer indemnity insurer declined to continue to represent the first defendant, and the application of a fresh legal mind as a result of the first defendant appointing new solicitors was the reason that this matter came to light.
10 Furthermore it seems to me that the proposed amendment should not result in any adjournment of the trial, because it is not said that the amendment will require additional discovery by the parties and in my view the plaintiff is not taken by surprise in the sense of having to make fresh investigations, and I repeat that the plaintiff was put on notice of the defence by letter dated 28 September 2001. The listed hearing dates for the trial are sufficiently in the future to allow the plaintiff to meet the amendment.
11 Furthermore, in my view the need for the amendment has arisen through no fault of the first defendant. The first defendant did not know of the contents of the defence filed on its behalf on 13 December 1999 by the employer indemnity insurer, nor was the first defendant kept informed of the progress of the action. The first defendant only knew of the
(Page 5)
- significance of the plaintiff's alleged contractor status when the plaintiff amended her statement of claim in June 2001 and the first defendant's employer indemnity insurer withdrew from conducting the first defendant's defence.
12 In my view all of the disputes between the plaintiff and the first defendant concerning the factual detail of the proposed defence, or any allegations of issue estoppel arising against the defendant from the WorkCover decisions should be referred to trial for determination on the amended pleading rather than an evaluation being undertaken at this interlocutory stage.
13 There are other amendments proposed by the first defendant, but they do not appear to be an issue and I do not need to comment on those.
14 The second defendant in relation to the first defendant's proposed amendment of its statement of claim against the second defendant raised similar issues to those raised by the plaintiff. Counsel for the second defendant accepted that his client's submissions should stand or fall with the rulings that I make in relation to the plaintiff.
15 There was one amendment made to the first defendant's amended defence to the plaintiff's amended statement of claim and that arose out of argument on the part of counsel for the second defendant. The first defendant consented to par 17 of the first defendant's amended defence to the plaintiff's amended statement of claim being amended to delete par (h) and par (i) and to alter par (g) to read, "Failing to adequately supervise, instruct and induct the plaintiff for the particular duties required to be undertaken." There will be orders in those terms.
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